IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 23, 2008
TIMOTHY S. DAUBERT, PLAINTIFF,
V. CITY OF LINDSAY, DEFENDANT.
The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DIRECTING PLAINTIFF TO SUBMIT USM-285 FORMS
Plaintiff Timothy S. Daubert ("Plaintiff") is proceeding pro se and informa pauperis in this Americans with Disabilities Act ("ADA") action. He names the City of Lindsay as the Defendant.
A. Screening Standard
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. § 1915(e)(2). If the Court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment. Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc).
B. Plaintiff's Allegations
According to the amended complaint, Plaintiff is confined to a wheelchair. He has encountered numerous alleged obstacles that prevent him from using McDermont Field House, in Lindsay, California. Plaintiff alleges that he has brought certain violations to the attention of the Lindsay Public Service Office, but the violations were not remedied.
Plaintiff's complaint appears to state a cause of action pursuant to Title II of the ADA. 42 U.S.C. § 12132. Accordingly, IT IS HEREBY ORDERED that:
1. Service is appropriate for the following Defendant: City of Lindsay
2. The Clerk of the Court shall send Plaintiff one USM-285 form, one summons, an instruction sheet and a copy of the amended complaint filed December 1, 2008.
3. Within THIRTY (30) DAYS from the date of this Order, Plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the Court with the following documents:
a. One completed summons;
b. One completed USM-285 form for each Defendant; and
C. Two copies of the amended complaint filed on December 1, 2008.
4. Plaintiff need not attempt service on Defendant and need not request waiver of service. Upon receipt of the above-described documents, the Court will direct the United States Marshal to serve the above-named Defendant pursuant to Federal Rule of Civil Procedure 4 without payment of costs.
5. The failure to comply with this Order will result in a Recommendation that this action be dismissed.
IT IS SO ORDERED.
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